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People v. Dyer

MAY 15, 1975.




APPEAL from the Circuit Court of Montgomery County; the Hon. PAUL M. HICKMAN, Judge, presiding.


The defendant, Clifford A. Dyer, a/k/a Tony Dyer, was indicted on 11 counts, 8 counts of murder, 1 count of manslaughter, and 2 counts of concealment of a homicidal death. The State elected to prosecute the defendant on one count of murder and one count of concealment of a homicidal death. At the conclusion of defendant's trial the jury returned verdicts of not guilty of murder and guilty of concealment of a homicidal death. The circuit court of Montgomery County entered judgment thereon and sentenced the defendant to not less than 32 months' nor more than 8 years' imprisonment. The defendant perfected both an appeal and a petition for post-conviction relief from the entry of this judgment. After an "evidentiary" hearing the defendant's post-conviction petition was dismissed by the circuit court of Montgomery County. The defendant also appeals from the dismissal of his post-conviction petition. For purposes of review we have consolidated the defendant's direct appeal and the defendant's appeal from the dismissal of his post-conviction petition.

The first contention the defendant raises on his direct appeal is that the jury's verdict of guilty of concealment is inconsistent with the jury's verdict of not guilty of murder. He argues that the evidence on both offenses was so "intertwined" that the jury could not, without compromising, return such inconsistent verdicts.

• 1 Our review of the record, however, reveals sufficient evidence from which the jury could have concluded, beyond a reasonable doubt, that the defendant did conceal the death of another person with knowledge that such person died by homicidal means. The greater part of this evidence is found contained in the testimony of the State's principal witness, Sandra Giller.

Sandra Giller testified in the following manner. On the evening of November 15, 1972, she went to the Log Cabin Inn with the defendant, Frank Arnold, and Jessie Campos, a/k/a Jessie Toledo, the deceased. While sitting at a table with the defendant and Campos, Campos pulled out a gun and shot it at the floor. When the witness and her three companions left the inn they entered Arnold's car. At this point Campos pulled a gun on the defendant. The two men fought, the defendant got the gun and told Campos he was going to teach him a lesson. The defendant then directed Arnold to drive towards the country. After driving into the country under the directions of the defendant, Arnold stopped the car near a shed. The defendant told Arnold and Campos to get out of the car. The defendant then pushed Campos towards the shed. The defendant, Arnold, and Campos entered the shed. At this juncture the defendant was in possession of the gun. After a couple of minutes, the witness heard a gunshot and someone scream. Then Arnold came running out and got in the car. He told the witness that the defendant had shot and killed Campos. The defendant exited from the shed a few minutes later, and the three of them drove into the town of Litchfield. Arnold was dropped off at his home and told by the defendant to report his car stolen. The defendant and the witness then proceeded to the defendant's home. There they picked up the defendant's car. The witness drove Arnold's car and the defendant drove his own car to a place called Walton Park. While there the defendant wiped fingerprints off Arnold's car and threw a small gun into a pond. They then left in the defendant's car; leaving Arnold's car at Walton Park. Later that evening the defendant told the witness that he had killed Campos.

The defendant contends that he thoroughly impeached Sandra Giller on cross-examination and argues that since the jury failed to return a verdict of guilty on the murder count that it must be concluded that the jury found Giller's testimony to lack credibility. We do not agree. It was the province of the jury to determine whether to accept, and to what extent to accept, Giller's testimony, As the court stated in People v. Pagan, 52 Ill.2d 525, 534, 288 N.E.2d 102, the judgment of the trier of fact will not be set aside on review unless the proof of guilt is so unsatisfactory as to create a reasonable doubt as to the defendant's guilt. The jury could reasonably have found that the two statements which directly incriminated the defendant on the murder count were insufficient to establish that the defendant murdered Campos and, yet, have found that the remainder of such testimony, portions of which were corroborated, was sufficient to establish that the defendant knew that Campos died as a result of a homicide and that the defendant took deliberate measures in an attempt to conceal such death. We do not find this proof so unsatisfactory as to require reversal, and we are satisfied that there was sufficient evidence to prove that the defendant's actions manifested an intentional effort to conceal Campos' homicidal death.

• 2 Nor do we find the jury verdicts to be legally inconsistent. The crime of concealment of a homicidal death is statutorily defined as follows:

"A person commits the offense of concealment of a homicidal death when he conceals the death of any other person with knowledge that such other person has died by homicidal means." (Ill. Rev. Stat., ch. 38, par. 9-3.1(a).)

Consequently, the trier of fact might be able to determine that a defendant concealed the death of an individual with knowledge that such individual died by homicidal means and, nevertheless, be able to determine that such defendant murdered that individual. An acquittal of murder does not ipso facto, require acquittal of the charge of concealment of a homicidal death. The statute expressly provides that each crime is a separate offense. (Ill. Rev. Stat., ch. 38, par. 9-3.1(b).) Our supreme court commented on the requirements of legal consistency of verdicts in People v. Hairston, 46 Ill.2d 348, 263 N.E.2d 840. Therein the court stated:

"But where, as here, the verdicts inconsistently acquit and convict of separate crimes arising from the same act, our courts have followed the view that logical consistency in verdicts in such instances is not necessary, so long as the verdicts are not legally inconsistent. [Citations.] To use the words of the court in State v. Baird, [200 Wn. 227], 93 P.2d 409, 412, we follow the view that: `In law there is no inconsistency in verdicts of acquittal and conviction upon charges of crimes composed of different elements, but arising out of the same state of facts.'" (46 Ill.2d 348, 361-62.)

(See also People v. Lyons, 26 Ill. App.3d 193, 324 N.E.2d 677.) Since the crimes of murder and concealment of a homicidal death are composed of different elements there is no legal inconsistency in the verdicts rendered in the instant case.

The sole remaining contention the defendant raises on direct appeal is that it was prejudicial error to bring up the past criminal record of the defendant and to offer evidence of other crimes to the jury.

The record discloses that the two instances in which the State's witnesses made reference to the defendant's past criminal record were not prejudicial and, consequently, do not require reversal. Neither reference detailed the defendant's past criminal conduct; nor was either of an inflammatory nature. In both instances, the defense counsel immediately objected, the statements were ordered stricken from the record, and the jury was instructed to disregard the remarks. Under these circumstances, we find such improper remarks if not cured (People v. Hamilton, 27 Ill. App.3d 249, 327 N.E.2d 35), constituted harmless error not requiring reversal. See People v. Wilson, 51 Ill.2d 302, 281 N.E.2d 626; People v. Cherry, 130 Ill. App.2d 965, 267 N.E.2d 744.

The defendant's allegation concerning the improper admission of evidence of "other crimes" concerns testimony developed on the cross-examination and redirect examination of Sandra Giller. The defendant contends that this testimony produced evidence that the defendant committed three other crimes, deceptive practices, pandering, and ...

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